Exhibit 10.13
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT, dated as of January 1, 1998, between
REVLON CONSUMER PRODUCTS CORPORATION, a Delaware corporation (the "Company"),
and XXXX X. XXXXXXX (the "Executive").
The Company wishes to continue the employment of the
Executive, and the Executive wishes to accept such continued employment, on the
terms and conditions set forth in this Agreement.
Accordingly, the Company and the Executive hereby agree as follows:
Employment, Duties and Acceptance.
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1.1 Employment, Duties. The Company hereby employs the Executive
for the Term (as defined in Section 2.1), to render exclusive and full-time
services to the Company as chief legal officer of the Revlon group of companies
or in such other executive position of at least an equivalent level consistent
with the Executive's business experience and background as may be assigned to
the Executive by the Chief Executive Officer of the Company, and to perform
such other duties consistent with such position (including service as a director
or officer of any affiliate of the Company, if elected) as may be assigned to
the Executive by the Chief Executive Officer of the Company. The Executive's
title shall be Executive Vice President and General Counsel, Revlon, Inc. or
such other title of at least equivalent level consistent with the Executive's
duties from time to time as may be assigned to the Executive by the Chief
Executive Officer of the Company.
1.2 Acceptance. The Executive hereby accepts such employment and
agrees to render the services described above. During the Term, the Executive
agrees to serve the Company faithfully and to the best of the Executive's
ability, to devote the Executive's entire business time, energy and skill to
such employment, and to use the Executive's best efforts, skill and ability to
promote the Company's interests.
1.3 Location. The duties to be performed by the Executive
hereunder shall be performed primarily at the office of the Company in the New
York City metropolitan area, subject to reasonable travel requirements
consistent with the nature of the Executive's duties from time to time on behalf
of the Company.
2. Term of Employment; Certain Post-Term Benefits.
2.1 The Term. The term of the Executive's employment under this
Agreement (the "Term") shall commence as of the date hereof (the "Effective
Date") and shall end on February 28, 2003. During any period that the
Executive's employment shall continue following expiration of the Term, (i) the
Executive shall be eligible for severance on terms no less favorable than those
of the Revlon Executive Severance Plan as in effect
on the date of this Agreement (other than the provision in Paragraph III C(ii)
thereof establishing a limit of six months of payments, which shall not apply
to the Executive), upon the Executive's compliance with the terms thereof, (ii)
the Company shall treat a voluntary termination of employment as a voluntary
retirement with the Company's consent for all purposes of the retirement and
other plans of the Company in which the Executive shall then participate and
Section 3.6(iii) below, and (iii) the Executive shall be deemed to be an
employee at will; provided that as a condition for the promises in clauses (i)
and (ii) above and in Section 3.6(iii) below, the Executive shall provide, upon
termination of employment, a release in form and substance comparable to the
releases currently used under the Executive Severance Plan.
2.2 Special Curtailment. The Term shall end earlier than the
date provided in Section 2.1, if sooner terminated pursuant to Section 4.
3. Compensation; Benefits.
3.1 Salary. As compensation for all services to be rendered
pursuant to this Agreement, the Company agrees to pay the Executive during the
Term a base salary, payable semi-monthly in arrears, at the annual rate of not
less than $555,000 (the "Base Salary"). All payments of Base Salary or other
compensation hereunder shall be less such deductions or withholdings as are
required by applicable law and regulations. In the event that the Company, in
its sole discretion, from time to time determines to increase the Base Salary,
such increased amount shall, from and after the effective date of the increase,
constitute "Base Salary" for all purposes of this Agreement.
3.2 Bonus. In addition to the amounts to be paid to the
Executive pursuant to Section 3.1, during the Term The Executive shall receive
a maximum annual performance incentive bonus with respect to each year
commencing with calendar year 1998 of 100% of the Executive's Base Salary at
the rate in effect during the calendar year in which bonus is earned (with a
target bonus equal to 60% of such Base Salary), based upon the degree of
achievement of objectives set annually not later than February 28 of such year
in accordance with the Revlon Executive Bonus Plan or by the Compensation
Committee of the Board of Directors of the Company, as the case may be. In the
event that the Executive's employment shall terminate otherwise than as of a
calendar year end, the Executive's bonus with respect to the calendar year in
which employment terminates shall be prorated for the actual number of days of
employment during such year, and such bonus, if any, shall be payable on the
date that executive bonuses are paid generally, whether or not the Executive
remains employed on such date.
3.3 Stock Options. The Executive shall be recommended to the
Compensation Committee or other committee of the Board administering the 1996
Revlon Stock Plan or any plan that may replace it, as from time to time in
effect, to receive an option not later than February 28 of each year of the
Term, commencing in 1998, each such option to cover a minimum of 40,000 shares
of Revlon common stock, to have a term of 10 years, to have
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an option exercise price equal to the market price of the Revlon common stock
on the date of grant, and otherwise to be on terms (other than number of shares
covered) substantially the same as other senior executives of the Company
generally, including Plan provisions respecting early termination of the term
of outstanding grants.
3.4 Business Expenses. The Company shall pay or reimburse
the Executive for all reasonable expenses actually incurred or paid by the
Executive during the Term in the performance of the Executive's services under
this Agreement, subject to and in accordance with the Company's applicable
expense reimbursement and related policies and procedures as in effect from
time to time.
3.5 Vacation. During each year of the Term, the Executive
shall be entitled to a vacation period or periods of four weeks taken in
accordance with the vacation policy of the Company as in effect from time to
time.
3.6 Fringe Benefits.
(i) During the Term, the Executive shall be entitled to
participate in those qualified and non-qualified defined benefit, defined
contribution, group insurance, medical, dental, disability and other benefit
plans of the Company as from time to time in effect made available to senior
executives of the Company generally, shall be entitled to the use of a
Company-provided automobile in accordance with the Company's executive
automobile policy and guidelines as from time to time in effect having a value
not less than that of the automobile currently assigned to the Executive
(adjusted as appropriate for inflation), and shall be entitled to be reimbursed
for the dues, assessments and other like charges of membership in the
University Club or other club of like cost.
(ii) During the Term, the Company agrees to make available to
the Executive additional term life insurance coverage with a face amount of
three times the Executive's Base Salary from time to time, subject to the
insurer's satisfaction with the results of any required medical examination, to
which the Executive hereby agrees to submit, and shall reimburse the Executive
for the premium expense related thereto and gross the Executive up for the tax
payable with respect to such reimbursement. Such coverage shall be provided
pursuant to the Company's optional supplemental term insurance program, if
available, or if not, the Executive may select a plan of the Executive's choice
and may designate the beneficiary of such plan.
(iii) During the Term the Company shall maintain an individual
policy of disability insurance, naming the Executive as the insured and the
Executive or a designee as the beneficiary, with a benefit equal to (A) fifty
percent of the sum of the Executive's Base Salary in effect on the date of
disability plus the Executive's most recent annual bonus pursuant to Section
3.2 less (B) the long-term disability benefit payable under the Company's group
disability program as in effect from time to time (irrespective of whether the
Executive has elected to participate in such long-term disability program), and
upon the
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Executive's retirement in accordance with the requirements of the Company's
former supplemental employees' retirement plan, in which the Executive was a
participant, the Company shall provide to the Executive a death benefit equal
to two times the Executive's final Base Salary as provided for in such plan
(which benefit may be provided from insurance or from the Company's
unsegregated general funds, as the Company may elect).
4. Termination.
4.1 Death. If the Executive shall die during the Term, the
Term shall terminate and no further amounts or benefits shall be payable
hereunder except pursuant to life insurance provided under Section 3.6.
4.2 Disability. If during the Term the Executive shall become
physically or mentally disabled, whether totally or partially, such that the
Executive is unable to perform the Executive's services hereunder for (i) a
period of six consecutive months or (ii) shorter periods aggregating six months
during any twelve month period, the Company may at any time after the last day
of the six consecutive months of disability or the day on which the shorter
periods of disability shall have equaled an aggregate of six months, by written
notice to the Executive (but before the Executive has returned to active
service following such disability), terminate the Term and no further amounts
or benefits shall be payable hereunder, except that the Executive shall be
entitled to receive until the first to occur of (x) the Executive ceasing to be
disabled or (y) the Executive's attaining the age of 65, continued coverage for
the Executive under the Company paid group life insurance plan (including
supplementa coverage under Section 3.6) and for the Executive and his spouse
and children, if any, under the Company's group medical (including executive
medical) plan, to the extent permitted by such plans and to the extent such
benefits continue to be provided to the Company's senior executives generally.
4.3 Cause. In the event of gross neglect by the Executive of
the Executive's duties hereunder, conviction of the Executive of any felony,
conviction of the Executive of any lesser crime or offense involving the
property of the Company or any of its subsidiaries or affiliates, willful
misconduct by the Executive in connection with the performance of the
Executive's duties hereunder or other material breach by the Executive of this
Agreement, or any other conduct on the part of the Executive which would make
the Executive's continued employment by the Company materially prejudicial to
the best interests of the Company, the Company may at any time by written
notice to the Executive terminate the Term and, upon such termination, the
Executive shall be entitled to receive no further amounts or benefits
hereunder, except as required by law.
4.4 Company Breach; Other Termination. In the event of the
breach of any material provision of this Agreement by the Company or the
failure of the Compensation Committee (or other appropriate Committee of the
Company's Board of Directors) to fully implement the Company's recommendation
pursuant to Section 3.3, the Executive shall be entitled to terminate the Term
upon 60 days' prior written notice to the Company. In
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addition, the Company shall be entitled to terminate the Term at any time and
without prior notice otherwise than pursuant to the provisions of Section 2.2,
4.2 or 4.3. Upon such termination by the Executive, or in the event the Company
so terminates the Term otherwise than pursuant to the provisions of Section
2.2, 4.2 or 4.3, the Company's sole obligation shall be (at the Executive's
election by written notice within 10 days after such termination) either (i) to
make payments in the amounts prescribed by Section 3.1 (less amounts required
by law to be withheld) and to continue the Executive's participation in the
group life insurance and in the basic and executive medical plans of the
Company, in each case through the date on which the Term would have expired
pursuant to Section 2.1, provided that (X) any compensation earned by the
Executive from other employment or a consultancy during such period shall
reduce the payments provided for herein, (Y) the Executive shall cease to be
covered by medical and/or dental plans of the Company at such time as the
Executive become covered by like plans of another company, and (Z) The
Executive shall, as a condition, execute such release, confidentiality,
non-competition and other covenants as would be required to receive payments
and benefits under the Policy referred to in paragraph (ii) below, or (ii) to
make the payments and provide the benefits prescribed by the Executive
Severance Policy of the Company as in effect on the date of this Agreement
(except that the provision in Paragraph IIIC(ii) establishing a limit of six
months of payments shall not be applicable to the Executive) upon the
Executive's compliance with the terms thereof.
4.5 Litigation Expenses. If the Company and the Executive
become involved in any action, suit or proceeding relating to the alleged
breach of this Agreement by the Company or the Executive, then if and to the
extent that a final judgment in such action, suit or proceeding is rendered in
favor of the Executive, the Company shall reimburse the Executive for all
expenses (including reasonable attorneys' fees) incurred by the Executive in
connection with such action, suit or proceeding or th portion thereof
adjudicated in favor of the Executive. Such costs shall be paid to the
Executive promptly upon presentation of expense statements or other supporting
information evidencing the incurrence of such expenses.
5. Protection of Confidential Information;
Non-Competition.
5.1 The Executive acknowledges that the Executive's work for
the Company will bring the Executive into close contact with many confidential
affairs of the Company not readily available to the public, including trade
secrets and confidential marketing, sales, product development and other data
and plans which it would be impracticable for the Company to effectively
protect and preserve in the absence of this Section 5 and the disclosure or
misappropriation of which could materially adversely affect the Company.
Accordingly, the Executive agrees:
5.1.1 Except in the course of performing the Executive's duties
provided for in Section 1.1, not at any time, whether during or after the
executive's employment with the
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Company, to divulge to any other entity or person any confidential information
acquired by the Executive concerning the Company's or its affiliates' financial
affairs or business processes or methods or their research, development or
marketing programs or plans, any other of its or their trade secrets, any
information regarding personal matters of any directors, officers, employees or
agents of the Company or its affiliates or their respective family members, or
any information concerning the circumstances of the Executive's employment and
any termination of the Executive's employment with the Company or any
information regarding discussions related to any of the foregoing. The
foregoing prohibitions shall include, without limitation, directly or
indirectly publishing (or causing, participating in, assisting or providing any
statement, opinion or information in connection with the publication of) any
diary, memoir, letter, story, photograph, interview, article, essay, account or
description (whether fictionalized or not) concerning any of the foregoing,
publication being deemed to include any presentation or reproduction of any
written, verbal or visual material in any communication medium, including any
book, magazine, newspaper, theatrical production or movie, or television or
radio programming or commercial. In the event that the Executive is requested
or required to make disclosure of information subject to this Section 5.1.1
under any court order, subpoena or other judicial process, the Executive will
promptly notify the Company, take all reasonable steps requested by the Company
to defend against the compulsory disclosure and permit the Company to control
with counsel of its choice any proceeding relating to the compulsory
disclosure. The Executive acknowledges that all information the disclosure of
which is prohibited by this section is of a confidential and proprietary
character and of great value to the Company.
5.1.2 To deliver promptly to the Company on termination of the
Executive's employment by the Company, or at any time the Company may so
request, all memoranda, notes, records, reports, manuals, drawings, blueprints
and other documents (and all copies thereof) relating to the Company's business
and all property associated therewith, which the Executive may then possess or
have under the Executive's control.
5.2 The Executive shall in all respects fully comply with the
terms of the Employee Agreement as to Confidentiality and Non-Competition
referred to in such Executive Severance Plan (whether or not the Executive is a
signatory thereof) with the same effect as of the same were set forth herein in
full.
5.3 If the Executive commits a breach of any of the
provisions of Sections 5.1 or 5.2 hereof, the Company shall have the following
rights and remedies:
5.3.1 The right and remedy to have the provisions of this
Agreement specifically enforced by any court having equity jurisdiction, it
being acknowledged and agreed that any such breach or threatened breach will
cause irreparable injury to the Company and that money damages and disgorgement
of profits will not provide an adequate remedy to the Company; and
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5.3.2 The right and remedy to require the Executive to account
for and pay over to the Company all compensation, profits, monies, accruals,
increments or other benefits (collectively "Benefits") derived or received by
the Executive as the result of any transactions constituting a breach of any of
the provisions of Sections 5.1 or 5.2 hereof, and the Executive hereby agrees
to account for and pay over such Benefits to the Company.
In addition, if the Executive attempts or threatens to commit a breach of any
of the provisions of Sections 5.1 or 5.2, the Executive consents to the Company
obtaining a preliminary and a permanent injunction in any court having equity
jurisdiction against the Executive committing the attempted or threatened
breach. Each of the rights and remedies enumerated above shall be independent
of the other, and shall be severally enforceable, and all of such rights and
remedies shall be in addition to, and not in lieu of, any other rights and
remedies available to the Company under law or in equity.
5.4 If any of the covenants contained in Sections 5.1, 5.2
or 5.3, or any part thereof, hereafter are construed to be invalid or
unenforceable, the same shall not affect the remainder of the covenant or
covenants, which shall be given full effect, without regard to the invalid
portions.
5.5 If any of the covenants contained in Sections 5.1 or 5.2,
or any part thereof, are held to be unenforceable because of the duration of
such provision or the area covered thereby, the parties agree that the court
making such determination shall have the power to reduce the duration and/or
area of such provision so as to be enforceable to the maximum extent permitted
by applicable law and, in its reduced form, said provision shall then be
enforceable.
5.6 The parties hereto intend to and hereby confer jurisdiction
to enforce the covenants contained in Sections 5.1, 5.2 and 5.3 upon the courts
of any state within the geographical scope of such covenants. In the event that
the courts of any one or more of such states shall hold such covenants wholly
unenforceable by reason of the breadth of such covenants or otherwise, it is
the intention of the parties hereto that such determination not bar or in any
way affect the Company's right to the relief provided above in the courts of
any other states within the geographical scope of such covenants as to breaches
of such covenants in such other respective jurisdictions, the above covenants
as they relate to each state being for this purpose severable into diverse and
independent covenants.
5.7 Any termination of the Term or this Agreement shall have
no effect on the continuing operation of this Section 5.
6. Inventions and Patents.
6.1 The Executive agrees that all processes, technologies and
inventions (collectively, "Inventions"), including new contributions,
improvements, ideas and discoveries, whether patentable or not, conceived,
developed, invented or made by him during the
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Term shall belong to the Company, provided that such Inventions grew out of the
Executive's work with the Company or any of its subsidiaries or affiliates, are
related in any manner to the business (commercial or experimental) of the
Company or any of its subsidiaries or affiliates or are conceived or made on
the Company's time or with the use of the Company's facilities or materials.
The Executive shall further: (a) promptly disclose such Inventions to the
Company; (b) assign to the Company, without additional compensation, all patent
and other rights to such Inventions for the United States and foreign
countries; (c) sign all papers necessary to carry out the foregoing; and (d)
give testimony in support of the Executive's inventorship.
6.2 If any Invention is described in a patent application or
is disclosed to third parties, directly or indirectly, by the Executive within
two years after the termination of the Executive's employment by the Company,
it is to be presumed that the Invention was conceived or made during the Term.
6.3 The Executive agrees that the Executive will not assert
any rights to any Invention as having been made or acquired by the Executive
prior to the date of this Agreement, except for Inventions, if any, disclosed
to the Company in writing prior to the date hereof.
7. Intellectual Property.
Notwithstanding and without limitation of Section 6, the Company
shall be the sole owner of all the products and proceeds of the Executive's
services hereunder, including, but not limited to, all materials, ideas,
concepts, formats, suggestions, developments, arrangements, packages, programs
and other intellectual properties that the Executive may acquire, obtain,
develop or create in connection with or during the Term, free and clear of any
claims by the Executive (or anyone claiming under the Executive) of any kind or
character whatsoever (other than the Executive's right to receive payments
hereunder). The Executive shall, at the request of the Company, execute such
assignments, certificates or other instruments as the Company may from time to
time deem necessary or desirable to evidence, establish, maintain, perfect,
protect, enforce or defend its right, title or interest in or to any such
properties.
8. Indemnification.
The Company will indemnify the Executive, to the maximum extent
permitted by applicable law, against all costs, charges and expenses incurred
or sustained by the Executive in connection with any action, suit or proceeding
to which the Executive may be made a party, brought by any shareholder of the
Company directly or derivatively or by any third party by reason of any act or
omission of the Executive as an officer, director or employee of the Company or
of any subsidiary or affiliate of the Company.
9. Notices.
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All notices, requests, consents and other communications required
or permitted to be given hereunder shall be in writing and shall be deemed to
have been duly given if delivered personally, sent by overnight courier or
mailed first class, postage prepaid, by registered or certified mail (notices
mailed shall be deemed to have been given on the date mailed), as follows (or
to such other address as either party shall designate by notice in writing to
the other in accordance herewith):
If to the Company, to:
Revlon Consumer Products Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Senior Vice President, Human Resources
If to the Executive, to his principal residence as reflected in the
records of the Company.
10. General.
10.1 This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York applicable to
agreements made between residents thereof and to be performed entirely in New
York. The parties hereby consent and submit to the exclusive jurisdiction of
the state and federal courts sitting in Manhattan, New York, for the
adjudication of any disputes arising hereunder.
10.2 The section headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
10.3 This Agreement sets forth the entire agreement and
understanding of the parties relating to the subject matter hereof, and
supersedes all prior agreements, arrangements and understandings, written or
oral, relating to the subject matter hereof, including without limitation the
Employment Agreement among the parties dated as of January 1, 1996. No
representation, promise or inducement has been made by either party that is not
embodied in this Agreement, and neither party shall be bound by or liable for
any alleged representation, promise or inducement not so set forth.
10.4 This Agreement, and the Executive's rights and
obligations hereunder, may not be assigned by the Executive. The Company may
assign its rights, together with its obligations, hereunder (i) to any affiliate
or (ii) to third parties in connection with any sale, transfer or other
disposition of all or substantially all of any business or assets in which the
Executive's services are then substantially involved; in any event the
obligations of the Company hereunder shall be binding on its successors or
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assigns, whether by merger, consolidation or acquisition of all or
substantially all of such business or assets.
10.5 This Agreement may be amended, modified, superseded,
canceled, renewed or extended and the terms or covenants hereof may be waived,
only by a written instrument executed by both of the parties hereto, or in the
case of a waiver, by the party waiving compliance. The failure of either party
at any time or times to require performance of any provision hereof shall in no
manner affect the right at a later time to enforce the same. No waiver by
either party of the breach of any term or covenant contained in this Agreement,
whether by conduct or otherwise, in any one or more instances, shall be deemed
to be, or construed as, a further or continuing waiver of any such breach, or
a waiver of the breach of any other term or covenant contained in this
Agreement.
10.6 This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
11. Subsidiaries and Affiliates.
11.1 As used herein, the term "subsidiary" shall
mean any corporation or other business entity controlled directly or indirectly
by the corporation or other business entity in question, and the term
"affiliate" shall mean and include any corporation or other business entity
directly or indirectly controlling, controlled by or under common control with
the corporation or other business entity in question.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
REVLON CONSUMER PRODUCTS CORPORATION
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
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